Judging judges: part II

Thomas Sowell

11/19/2002 12:00:00 AM - Thomas Sowell

Although Republicans have regained control of the Senate, in a numerical sense, controlling the Senate in reality is a much tougher job. The ability of a minority in the Senate to filibuster things they object to means that real control may require 60 votes to shut off debate and allow votes to be taken.

The Democrats cannot filibuster everything, and they certainly cannot filibuster each of the Bush administration's many judicial nominees that they kept bottled up when there was a Democratic majority in the Senate. But Democrats may well save a filibuster as a sort of political version of a nuclear threat, in order to prevent President Bush from nominating a strong candidate for the Supreme Court -- someone who is in favor of enforcing the laws as written and who has the fortitude to stick to that position, despite all the pressures and temptations to "grow."

The administration may well find itself under great pressure to avoid a political bloodletting by not nominating someone who will rile up the Democrats. The voices of compromise are always seductive -- and too often over the years the Republicans have heeded those voices.

Democratic administrations have put some truly awful people on the federal courts, including the Supreme Court, but Republicans have also appointed some of the worst judicial activists, both during the flamboyant Earl Warren era and in later years, when they appointed such justices as John Paul Stevens and David Souter, who have been more low key but have developed just about as much disregard of the written law.

Republicans have also put some wobbly "moderates" on the Supreme Court, like Justices Sandra Day O'Connor and Anthony Kennedy, who tend to try to finesse tough issues and split the difference. This turns the law into a guessing game for those who want to be law-abiding citizens and into an instrument of extortion for those who are litigious.

After decades of shameless judicial activism, the very concept of the rule of law can erode away unless there are people on the Supreme Court with the courage and the clarity to call a halt, and even consider overturning some of the more outrageously lawless Supreme Court decisions of the past.

Believers in judicial restraint face a major dilemma because such restraint applies both to following the laws as written and respecting legal precedents. Both these things make the law predictable -- without which it is not really law but just a set of arbitrary edicts, and courts are just places from which lightning can strike anyone without warning at any time.

Democrats do not have to worry about such considerations. What they want are judges who will produce the kinds of results that their political base wants -- especially on such issues as abortion and affirmative action. The next best thing is to be able to scare off the Bush administration by threatening a filibuster if the president nominates someone whose top priority is upholding the law, someone in the mold of Antonin Scalia or Clarence Thomas.

When the next vacancy occurs on the Supreme Court, the Bush administration will face the choice between nominating someone who believes in the rule of law or nominating another "moderate" to avoid a filibuster by the Democrats. But there may be a way out of that dilemma.

What if the administration could find someone who is not merely an advocate of judicial restraint but someone with a strong record of having unabashedly practiced it? And what if it would be someone who would present real political problems to the Democrats if they filibustered or launched a smear campaign?

California Supreme Court Justice Janice Rogers Brown has been a very tough advocate of applying the law as it is written. When her fellow justices have gone the judicial activism route, her scathing and brilliant dissents have punctured their pretenses without mercy. Moreover, she has shown herself to be as knowledgeable as she is tough-minded.

Why would the Democrats have to hesitate before launching a filibuster against her nomination? Because Janice Rogers Brown is a black woman. That shouldn't matter but the Democrats are the ones who have always made such things matter. Now they would be hoist by their own petard.